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Noah Naparsteck, Personal Representative For the Estate of v. Commonwealth of Pennsylvania Department of Public Welfare

April 27, 2012


The opinion of the court was delivered by: A. Richard Caputo United States District Judge



Presently before the Court is Defendants Luzerne County, Children and Youth Services of Luzerne County, Elizabeth Lozosky-Laylo, Frank Castano, and Rose Gallagher's Motion for Reconsideration of the Court's earlier ruling on their Motion to Dismiss. Plaintiff Noah Naparsteck, personal representative for the Estate of Xavier Simmons, seeks to recover for the death of Xavier Simmons while he was subject to a safety plan established by the Defendants. In particular, these Defendants argue that the Court committed a clear error of law in allowing this action to proceed against them upon a special relationship theory under the Fourteenth Amendment. Because this arrangement was sufficiently analogous to foster care, the Court finds no clear error in its previous determination that this claim may survive a motion to dismiss.


By way of review, Plaintiff alleges the following in his Amended Complaint. (Doc. 11). On November 29, 2007, Luzerne County Children and Youth Services ("CYS") were noticed that Tiffany Simmons had left her children with her mother, Sharon Barr, for a two-week period. One of her children, Xavier Simmons, was only six weeks old at that time. CYS knew that Sharon Barr was unable to appropriately care for the children due to mental health issues and that Tiffany Simmons was addicted to illegal drugs. As such, CYS assigned a case worker to the situation on December 4, 2007 and developed a Safety Plan on December 11, 2007.

The Safety Plan removed Xavier's three older siblings from their Mother's custody and placed them with their Father. The Plan left Xavier alone with his Mother, but she was not allowed to remove him from his Grandmother's home. It also specifically provided that Xavier would have no contact with Tiffany Simmons's dangerous boyfriend, Alan Leitzel. The Plan stated that violation of this provision would cause CYS to file for shelter care of Xavier. However, Tiffany Simmons violated the Plan. CYS received numerous reports confirming that Xavier had visited Leitzel's home on December 26, 2007 and that the children were told to lie about their visit. On January 4, 2008, CYS interviewed one of Xavier's siblings and directly confirmed the visit and the order to lie about it. CYS made a determination sometime around then to file a dependency action that would remove Xavier from the care of Tiffany Simmons and Sharon Barr. Although the paperwork was completed January 4, 2008, it was not submitted until January 9. On January 14, 2008, CYS filed a petition with the Court of Common Pleas requesting a determination that Xavier be found dependent. "However, despite the clear terms of the Safety Plan, nothing was done by any of the Defendants to remove Xavier from his mother and Alan Leitzel from December 26, 2007 when they learned the Safety Plan was violated and January 14, 2008 when a petition was finally filed with the Court of Common Pleas." (Id. at p. 6).

Tragically, on January 14, 2008, the same day as the petition was filed in the Court of Common Pleas, Tiffany Simmons again brought Xavier to Leitzel's home. While there, Leitzel violently shook Xavier and hit his head. Xavier suffered severe brain injuries and died the next day as a result.

Plaintiff filed his Complaint in the Court of Common Pleas of Luzerne County on July 21, 2011. The Defendants removed the action on August 19, 2011, and filed a motion to dismiss on August 26, 2011. (Doc. 3). Plaintiff, believing the Defendants' objections could be remedied with the filing of an amended complaint, was granted leave to do so by the Court on October 7, 2011. (Doc. 9). Plaintiff then filed his Amended Complaint, alleging violations of Xavier's Fourteenth Amendment Due Process rights pursuant to 42 U.S.C. § 1983 as well as a survival action pursuant to 20 Pa. Cons. Stat. § 3373 and 42 Pa. Cons. Stat. § 8302, and a wrongful death claim pursuant to 42 Pa. Cons. Stat. § 8301. (Doc. 11).

On January 17, 2012, the Court granted in part and denied in part the moving Defendants' Motion to Dismiss. (Jan. 17, 2012 Order, Doc. 17.) Specifically, the Court dismissed Defendants Anthony Lumbis, Victor J. Drosey, Marsha Ann Basco, Bernard Podcasy, and Jennifer Rogers, as well as Plaintiff's state-law claims since they were barred by the Political Subdivision Tort Claims Act. The Court also dismissed Plaintiff's Fourteenth Amendment claim to the extent it relied upon the state-created danger theory, but allowed it to proceed upon a special relationship theory. It is this determination--that the special relationship theory may apply to the facts of this case--that the moving Defendants argue was in clear error. The Defendants filed a Motion for Reconsideration on January 31, 2012 arguing that the Court should overturn its earlier determination, or, in the alternative, grant an immediate appeal of the issue. This Motion for Reconsideration has been fully briefed and is ripe for the Court's review.


I. Legal Standard

This Motion for Reconsideration arises under Middle District Local Rule 7.10. The procedure for such reconsideration is essentially the same as a motion to alter or amend judgment brought under Rule 59(e), except that it allows for reconsideration of any court order, and is not limited to the entry of judgment. Arlington Indus., Inc. v. Bridgeport Fittings, Inc., No. 3:06--CV--1105, 2011 WL 4916397, at *2 (M.D. Pa. Oct. 17, 2011) (clarifying that the "difference between a motion for reconsideration under Local Rule 7.10 and a motion to alter or amend judgment under Rule 59(e) is that a motion for reconsideration under Local Rule may be filed in response to any order of the court, not solely after the entry of judgment.").

The purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence. Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.1985). A judgment may be altered or amended if the party seeking reconsideration establishes at least one of the following: "(1) an intervening change in controlling law; (2) the availability of new evidence that was not available when the court granted the motion for summary judgment; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice." Max's Seafood Cafe, by Lou-Ann, Inc., v. Quinteros, 176 F.3d 669, 677 (3d Cir.1999). "A motion for reconsideration is not to be used as a means to reargue matters already argued and disposed of or as an attempt to relitigate a point of disagreement between the Court and the litigant." Ogden v. Keystone Residence, 226 F. Supp.2d 588, 606 (M.D. Pa. 2002). "[R]econsideration motions may not be used to raise new arguments or present evidence that could have been raised prior to the entry ...

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